United States v. Neary

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 9 1999
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 98-8050
DEBORAH LYNN NEARY,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 96-CR-26)

Before BALDOCK, BARRETT, and BRORBY, Circuit Judges.

David A. Kubichek, Assistant United States Attorney, (David D. Freudenthal, United States
Attorney, District of Wyoming, with him on the briefs), Casper, Wyoming for Plaintiff-
Appellee.

David M. Gosar, Jackson, Wyoming for Defendant-Appellant.

BALDOCK, Circuit Judge.

Defendant Deborah Lynn Neary appeals the district court’s order granting the

government’s Fed. R. Crim. P. 35(b) motion to reduce her sentence. Defendant argues that

the district court misapplied the sentencing guidelines by considering factors other than the

assistance she provided to the government in deciding to reduce her sentence by twenty-
three months, instead of by the thirty-three months recommended by the government.

I. Background

Defendant pleaded guilty to conspiracy to distribute a controlled substance, in

violation of 21 U.S.C. § 846. One of the terms of the plea agreement provided that if

Defendant provided substantial assistance to the government, the government would

recommend a two-level reduction in Defendant’s offense level. Defendant’s original

offense level was 31, with a criminal history category I, resulting in a guideline range of 108

to 135 months. The government did not file a Rule 35(b) motion prior to sentencing, and

the district court sentenced Defendant to 120 months.

The government subsequently filed a Rule 35(b) motion to reduce Defendant’s

sentence based on the assistance Defendant provided to the government.1 The motion

recommended that the district court reduce Defendant’s offense level to 29, with a criminal

history category I, resulting in a guideline range of 87 to 108 months. The government

further recommended that the district court sentence Defendant at the “low end of said

range (87 months).” The district court granted the motion, and reduced Defendant’s

sentence to 97 months. In doing so, the district court held that “given the defendant’s

pivotal role in the offense, the Court believes this partial reduction in sentence confers

benefit to her for her cooperation with the Government and acknowledges her calculating

1
It is undisputed that Defendant provided substantial assistance to the
government. She testified before the grand jury, at a codefendant’s sentencing hearing,
and at the trial of three individuals implicated by her grand jury testimony. All three
were convicted.

2
participation in the crime.”

Defendant filed a motion for reconsideration. During a hearing on the motion, the

district court explained that the court had followed the government’s Rule 35(b)

recommendation when it reduced the offense level by two levels and then sentenced

Defendant within the adjusted sentencing range.2 The district court characterized

Defendant’s complaint as one of dissatisfaction with a sentence in the middle of the

guidelines range, instead of one at the low end of the range. As a result, the district court

denied the motion to reconsider.

II. Jurisdiction

The government argues that we lack jurisdiction to review the district court’s grant

of a Rule 35(b) sentence reduction. Jurisdiction to review the district court’s grant of a

Rule 35(b) motion arises, if at all, under 18 U.S.C. § 3742(a). See United States v.

McMillan, 106 F.3d 322, 324 n. 4 (10th Cir. 1997) (§ 3742 governs jurisdiction to hear

appeals from the disposition of a Rule 35(b) motion). Section 3742 permits Defendant to

appeal her sentence only if the sentence:

(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the sentencing guidelines;
or
(3) is greater than the sentence specified in the applicable guideline range . . .; or
(4) was imposed for an offense for which there is no sentencing guideline and is
plainly unreasonable.

2
Defendant incorrectly asserts that no record exists of the method employed by
the trial judge to reach the new sentencing range. We direct counsel to page 8 of the
transcript of the May 22, 1998, hearing on the motion to reconsider.

3
18 U.S.C. § 3742(a)(1)-(4). Section 3742 does not normally allow appellate review of a

district court’s discretionary denial of a downward departure, or review of the amount of a

downward departure, if granted. See United States v. Bromberg, 933 F.2d 895, 896 (10th

Cir. 1991). In an attempt to place her appeal within the confines of

§ 3742(a)(1), Defendant argues that her sentence was imposed in violation of

law because the district court considered a factor other than the assistance she provided to

the government in determining her sentence.

Rule 35(b) provides that the district court “may reduce a sentence to reflect a

defendant’s subsequent substantial assistance . . . in accordance with the guidelines . . .

issued by the Sentencing Commission.” Fed. R. Crim. P. 35(b). Section 5K1.1 of the

sentencing guidelines provides for downward departures for substantial assistance and lists

five nonexclusive factors the court may consider in determining an appropriate reduction.3

Defendant argues that the district court’s consideration of her role in the offense, a factor

not contained in § 5K1.1, was an error of law. The only court to address whether factors

3
Section 5K1.1(a) provides that “[t]he appropriate reduction shall be
determined by the court for reasons stated that may include, but are not limited to,
consideration of the following:
(1) the court’s evaluation of the significance and usefulness of the defendant’s
assistance, taking into consideration the government’s evaluation of the
assistance rendered;
(2) the truthfulness, completeness, and reliability of any information or
testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury to the defendant or his
family resulting from his assistance;
(5) the timeliness of the defendant’s assistance.
U.S.S.G. § 5K1.1(a) (emphasis added).

4
other than substantial assistance may be considered by the district court in determining the

size of a Rule 35(b) sentence reduction, rejected Defendant’s exclusivity argument. See

United States v. Manella, 86 F.3d 201, 204-05 (11th Cir. 1996) (Rule 35(b) does not

prohibit consideration of factors other than the defendant’s assistance in deciding to what

extent a defendant’s sentence should be reduced). For the reasons set forth below, we reject

Defendant’s argument as well.

In this case, the district court granted the Rule 35(b) motion and reduced Defendant’s

offense level by two to 29, just as the government recommended. The applicable

sentencing range for an offense level of 29 with a criminal history category I, is 87 to 108

months. The district court sentenced Defendant to 97 months, well within this sentencing

range. Defendant does not dispute the applicability of the 87 to 108 month sentencing

range. Defendant does not argue that the district court erred by granting her a downward

departure. Instead, Defendant argues that the district court erred in fixing a particular

sentence in the appropriate range. Specifically, Defendant invites us to scrutinize the

justification offered by the district court for her 97-month sentence. We lack jurisdiction to

do so. See United States v. Spradling, No. 90-2030, 1991 WL 230176, at *1 (10th Cir.,

Nov. 8, 1991) (unpublished). Absent “facial illegality, improper calculations, or clearly

erroneous findings,” we may not review the district court’s decision to impose a sentence at

a particular point within the proper sentencing range. See United States v. Garcia, 919 F.2d

1478, 1481-82 (10th Cir. 1990)); see also United States v. Neff, No. 90-6263, 1991 WL

99052, at * 1 (10th Cir. June 7, 1991) (unpublished) (reasons underlying district court’s

5
decision to impose a sentence at a particular point within the sentencing range lies within

the exclusive discretion of the sentencing court).

Defendant does not allege that the district court’s selection of the 97-month sentence

resulted from improper calculations or clearly erroneous factfinding. Instead, Defendant

argues that by considering Defendant’s role in the offense, the district court took into

account a facially illegal factor when sentencing Defendant. We have interpreted facially

illegal sentences as those sentences based on race, gender, or other considerations

contravening clearly established public policy. Garcia, 919 F.2d at 1480; see also U.S.S.G.

§ 5H1.10 (race, sex, national origin, creed, religion, and socio-economic status are not

relevant in the determination of a sentence). Defendant points to no authority supporting

her contention that the district court’s consideration of a defendant’s role in the offense or

degree of participation is unlawful or violates clearly established public policy. Indeed, the

sentencing guidelines explicitly provide for consideration of a defendant’s role in the

offense in several contexts. See U.S.S.G.

§§ 3B1.1, 3B1.2, 3B1.3, 3B1.4; see also U.S.S.G. § 5H1.7 (“defendant’s role in the offense

is relevant in determining the appropriate sentence”). Because we conclude that

Defendant’s sentence was not based on a facially illegal factor, we lack jurisdiction to hear

this appeal.

APPEAL DISMISSED.